Teresa Scassa - Blog

Displaying items by tag: Internet
Thursday, 06 December 2012 10:25

Canada's New Draft Open Government Licence

The federal government has released a new proposed Open Government Licence – Canada (OGL-C) through its Open Data Portal. This licence agreement is not currently in effect; data available through the portal is still licensed under the existing Licence Agreement. The planned release of the OGL-C is in the spring of 2013.

The OGL-C has been a very long time in the drafting, and this draft is most welcome. The government is now seeking feedback on it – at the conclusion of the licence posted online is a fillable form that invites direct comments by the end of January 2013. The Licence Agreement currently in effect is also an open licence, but it suffers from excessive legalese. In contrast to other open licences it sets a tone that might make anyone feel that they should seek legal advice before using the government’s data sets. It contains language such as the following: “Intellectual Property Rights in any modification, translation or further development of the Data or in Value-Added Products made by you in the exercise of your rights under this Agreement, shall vest in you, in such person as you shall decide, or as determined by law.” It is hardly transparent and inviting language.

The proposed OGL-C is much more along the lines of Britain’s Open Government License (OGL), and indeed, the explanatory paragraphs that accompany the licence note that it is based upon this license. Interestingly enough, British Columbia also modified the British OGL, and has been using its modified version of this licence for some time now. The OGL-C and the BC-OGL are similar, but there a number of differences. Some of these are attributable to the distinct licensing parties, other differences may be due to a desire to further simplify the licence, and still others are difficult to understand.

There are several features of the OGL-C which deserve a second look before it becomes operational. First, “information” is defined in the licence as “information protected by copyright or by database right offered for use under the terms of this Licence” [emphasis added]. Since there is no database right in Canada, it makes no sense for this term to be included (it is also used in the definition of “Use”, where it refers to “doing any act which is restricted by copyright or database right”). The reference to database rights is found in the British OGL, since in that jurisdiction there are separate database rights. However, there is simply no reason why reference to rights that do not exist in Canada should be included in a licence meant to be simple, open and accessible. The BC-OGL, adapted to the Canadian context, refers only to copyright.

Like the BC-OGL licence, the OGL-C explicitly excludes any right to use personal information. Unlike the BC-OGL, however, the OGL-C uses the term “personal data” and provides no definition of this term. Since federal data protection laws (both PIPEDA and the Privacy Act) govern the collection, use and disclosure of “personal information”, it makes sense to use this term, rather than “personal data” (which is the British term, used in the British OGL). It should also be noted that the French version of the licence uses “renseignements personnels”, which is normally translated as “personal information” in the federal legislation. Further, it would be helpful to provide (as is the case in the BC-OGL) a definition of “personal information” as this is an important concept, and one which goes well beyond, for example, name and address information. This can be done by reference to the governing privacy statute (as is done in the BC-OGL and the British OGL), or it could also be done through the use of the common portion of most Canadian definitions of personal information: “information about an identifiable individual.”

The licence is also somewhat muddy in its use of two terms – “the Information Provider” and the “Licensor”. The BC OGL uses only “Information Provider” and defines this as Her Majesty the Queen in right of the Province of British Columbia. By contrast the British OGL uses the same structure as the OGL-C, and separately defines the Information Provider and the Licensor. However, the definition of Licensor in the British OGL is much more detailed. It is not clear that this complicated distinction needs to be carried through to the OGL-C. Indeed, the complexity of the British definition of “Licensor” is abandoned in the OGL-C, with the result that under the OGL-C, the “Information Provider” is defined as “the person or organization providing the Information under this Licence” and the “Licensor” is defined as “any Information Provider which has the authority to offer Information under the terms of this Licence”. Defined in this way, using two separate terms seems unnecessary and confusing. Further, there is no mention that the actual holder of copyright in government data or documents is Her Majesty the Queen in right of Canada, and that if any third party rights have been licensed to the Crown, Her Majesty will also be the one authorized to licence them further. What the double terminology seems to suggest instead is that Information Providers are Licensors only when they have the “authority” to license the information, presumably from Her Majesty the Queen in Right of Canada. This implies that there might be some rogue Information Providers who do not qualify as Licensors. It would be far simpler to adopt the structure used in the BC-OGL and simply acknowledge that where the information is provided by a department or agency of government, the Information Provider is acting on behalf of Her Majesty, and is entitled to licence the Crown copyright in the information. In other words, the legalistic term Licensor should be ditched in favour of Information Provider, and the Information Provider should be, ultimately, her Majesty the Queen in Right of Canada.

These criticisms aside, the OGL-C is a marked improvement over previous attempts at drafting open licences for federal government data. The licence is meant to be simple and accessible, and is designed to encourage rather than stifle the re-use of government information. Its reliance on the British OGL shows a willingness not only to build on the experience of others, but also to develop a licence that will have some measure of interoperability with other open licences around the world. Let’s hope that the process remains on track, and that the revised licence will indeed be adopted for use by spring 2013.

 

Electronic Commerce and Internet Law in Canada, 2nd Edition, CCH Canadian Ltd., 2012 (with Michael Deturbide).

Electronic Commerce and Internet Law in Canada, 2nd Edition is a definitive resource on Internet and e-commerce law from Canada’s leading IT law experts, Teresa Scassa and Michael Deturbide.With a Foreword written by Justice Thomas Cromwell of the Supreme Court of Canada, this latest edition’s extensive coverage addresses the vast changes that have taken place in this dynamic and rapidly evolving field.Highlights in the new edition include:

* New Copyright Act amendments

* Trademark issues online

* Online contracting, including browse wrap agreements

* Personal information protection in the private sector

* Software and e-business patents

* Consumer protection online

* Canada's new anti-spam legistlation

* Online Anonymity

* Regulation of online speech

* Intermediary liability

* Web-based competition

* Internet domain names

* Jurisdictional issues

Published in Books

I recently blogged for FreeSpeechDebate.Org about free speech, ambush marketing and the London Olympics. The posting is available here:

http://freespeechdebate.com/en/discuss/guilt-by-association-the-london-2012-olympics/

Published in Ambush Marketing

On July 12th the Supreme Court of Canada handed down five decisions on copyright law. Collectively these five judgments send a strong message as to the interpretation of the rights of both owners and users of copyright protected works.

In terms of owners’ rights, two of the decisions deal with the scope of the economic right to communicate a work to the public by telecommunication. A third decision addresses the scope of the neighboring right of performers and makers of sound recordings to be remunerated for performances of these works in public or for their communication to the public by telecommunication. The core issue in Entertainment Software Association and Entertainment Software Association of Canada v. SOCAN was whether a tariff could be applied to music incorporated into video games downloaded over the internet. Music is frequently a part of video games, and the makers of video games negotiate the rights to include this music in their products. No separate tariff is applied when such games are purchased by consumers from brick and mortar stores. The issue in this case was whether when the games were sold over the internet as downloads, the songs were communicated to the public by telecommunication. This would implicate a separate economic right of the music copyright holders, and would thus eligible for the imposition of a tariff. Similarly, in Re: Sound v. Motion Picture Theatre Associations of Canada the issue was whether a right of remuneration for music that formed part of movie soundtracks, the use of which would already have been negotiated with the rights holders, was triggered by each time the movie was screened, streamed or broadcast In Rogers Communications Inc. et al v. SOCAN, the issue was whether music streamed over the internet to consumers “on demand” was a communication to the public by telecommunication, to which a tariff could be applied.

In reaching its decisions in these three cases the Court demonstrated both a commitment to the “balancing” approach it had initiated with its 2002 decision in Théberge, and a concern that the Copyright Act be interpreted in a technologically neutral manner. The Court found that in the case of music incorporated into video games, the right to incorporate the music into the game had already been negotiated and paid for by the makers of the video games. The only distinction between the context in which the game was sold in stores and where it was sold over the internet was the manner in which the game was delivered to the consumer. According to the majority of the Court, “it makes little sense to distinguish between the two methods of selling the same work.” (at para 1). To decide otherwise, according to the majority, would “violate[] the principle of technological neutrality, which requires that the Act apply equally notwithstanding the technological diversity of different forms of media.”(at para 2). In the context of online sales of the games, the internet functioned simply as a means of delivering the work to the customer who paid for the work. The majority rejected an approach that would allow for two fees – one for reproduction and one for communication – to be charged simply because of the mode of delivery chosen for the work. The decision has significant ramifications for any work that is made available online for legal downloading, whether it is a movie, game, musical work or electronic text.

In Rogers, the court distinguished between using the internet to download music files from the internet (which would be analogous to the purchase of a video game over the internet, and thus not subject to a separate royalty for communication to the public) and the streaming of music to customers over the internet. In the latter case, musical works were being communicated over the Internet, and these communications were to “the public” notwithstanding the fact that “pull” technology was used such that the works communicated were dependent upon the choices of individual consumers. In reaching the decision the Court also emphasized the principle of “balance” noting that such a balance “is not appropriately struck where the existence of copyright protection depends merely on the business model that the alleged infringer chooses to adopt rather than the underlying communication activity. Whether a business chooses to convey copyright protected content in a traditional, “broadcasting” type fashion, or opts for newer approaches based on consumer choice and convenience, the end result is the same.” (at para 40). Thus in the case of consumers acquiring copies of musical or other works, the internet is used as a delivery mechanism and the work is not “communicated” in a broadcasting sense. By contrast, where the work is streamed, the act is one of communication in a manner that is equivalent to broadcasting.

The Court’s decision in Re: Sound is along the same lines. The Copyright Act provides that performers and makers of sound recordings have a right of remuneration with respect to the performance in public or the communication to the public by telecommunication of their performances or sound recordings. The Act contains an exception; the definition of a “sound recording” excludes “any soundtrack of a cinematographic work where it accompanies the cinematographic work”. On the face of it, this appears quite straightforward. The producers of a movie that is to include a musical work must clear the rights to use the work in the movie; the licensing fee would no doubt take into account the fact that the movie is intended to be shown in cinemas and made available for broadcast or other forms of communication to the public by telecommunication. Therefore, it is unnecessary to provide for additional remuneration for rights holders in these circumstances. This is, indeed, the interpretation adopted by the Supreme Court of Canada.

These decisions on the rights of copyright owners seem eminently sensible. They respect the right of the copyright owner to be remunerated for a commercial use of their work; at the same time, they resist what seems to have emerged as an industry practice to layer rights and royalties on single economic acts. The result is clear, straightforward, practical, and ultimately balanced.

The other two decisions of the Supreme Court of Canada dealt with the ‘users’ right’ of fair dealing. Prior to the decision in CCH Canadian, fair dealing had been treated in Canada as a rather limited exception to the rights of copyright holders. In CCH Canadian, the Supreme Court of Canada established it as a users’ right, and emphasized its role in maintaining the balance between public and private interests under the Copyright Act. In SOCAN v. Bell Canada, the Court was asked to consider the scope of fair dealing in relation to the practice of online music sites of providing previews consisting of short excerpts of musical works to customers searching for music to download from their sites. The collective societies sought a tariff that could be applied to such previews, arguing that they constituted a communication to the public by telecommunication of a substantial part of each work, thus engaging the economic rights of the copyright owner. The music providers argued that previews were consulted by customers as a form of research into the music they wished to purchase; as a result, they were fair dealing for the purposes of research under the Copyright Act. The unanimous Court ruled that these previews were fair dealing. They reiterated the view that fair dealing rights must not be interpreted restrictively, and maintained that “research” must be given a large and liberal interpretation. The Court rejected the idea that “research” could only refer to activities that led to the creation of new works or new knowledge. They maintained that “[t]o do so would ignore the fact that the dissemination of works is also one of the Act’s purposes, which means that dissemination too, with or without creativity, is in the public interest.” (at para 21). The Court found that there was a low threshold for qualifying activities as ‘research’ and that this threshold was met in this case. On the issue of whether the dealing was ‘fair’, it had been argued that the music sites made previews available to customers for essentially commercial purposes, mitigating against a finding that the dealing was fair. However, the Court was of the view that it was the purpose of users that should be considered; in this case, they used the previews “to help them research and identify musical works for online purchase.” (at para 34). The Court examined the nature of the dealing, noting that the excerpts were of 30 to 90 second portions of the work and were of a quality inferior to the musical work available for sale. The Court also rejected an approach to evaluating the volume of dealing with the work on an aggregate basis (i.e., not in relation to the portion of each work accessed, but rather the aggregate number of excerpts accessed by consumers). They noted that such an approach might undermine the goal of technological neutrality, since it would mean that “most of what online service providers do with musical works would be treated as copyright infringement.” (at para 43) The court noted as well that the previewing of musical works did not have a negative effect on the economic rights of the owner of copyright; rather, the goal of providing previews was to facilitate sales of the works, for which the copyright owners would be compensated.

The decision in Province of Alberta v. Access Copyright is likely to be the most controversial of the five decisions. This case addressed a dispute over what types of in-school copying activities could be captured by the tariff for reprography. As photocopying that was fair dealing would be excluded from the tariff, the dispute focussed on whether copies made of excerpts from text books for distribution to students for class instruction amounted to fair dealing. According to a 5-4 majority of the Court, it did. The majority declined to separate the teachers’ purpose (instruction) from that of the students (private study). Instead, they characterized the role of the teachers as to support and facilitate the research and private study of their students. The majority wrote: “It seems to me to be axiomatic that most students lack the expertise to find or request the materials required for their own research and private study, and rely on the guidance of their teachers. They study what they are told to study, and the teacher’s purpose in providing copies is to enable the students to have the material they need for the purpose of studying.” (at para 23). The majority described this as a “symbiotic purpose” between students and teachers. They characterized the provision of photocopied materials to students by teachers as “an essential element in the research and private study undertaken by those students.” (at para 25) Further, the majority rejected an interpretation of “private study” that focussed on the term “private” – in their view, this term “should not be understood as requiring users to view copyrighted works in splendid isolation.” (at para 27)

Having found that the copying of excerpts was for “research or private study” the court next considered whether this dealing was “fair”. They found that it was. As in SOCAN v. Bell, they rejected an approach that considered the volume of dealing on an aggregate basis; instead each excerpt had to be considered in relation to the work from which it was taken. The majority found no reasonable alternative to the dealing; purchasing the books for each student was not a reasonable alternative given that only short excerpts were required. The Court also found the evidence of the economic impact of the copying on textbook publishers to be unconvincing. They noted that there was no causal link between a decline in textbook sales and the copying of short excerpts, and that other factors could more easily explain the decline in sales. Further, they found that it was not reasonable to assume that if the copying did not take place, that the books from which the excerpts were taken would be purchased for all students. The court noted that “it is more likely that students would simply go without the supplementary information, or be forced to consult the single copy already owned by the school.” (para 36).

This decision is of great significance in the educational sector because of its broad definition of “research and private study” and its interpretation of the teachers’ role in their students’ activities. It is also of great significance because it will guide the interpretation of “education” as a new basis for fair dealing introduced by the recently passed Bill C-11. The educational sector in Canada has long been squeezed for royalties by Access Copyright. Resistance to Access Copyright’s licences has been growing, in part because of the under-inclusiveness of such licences when it comes to activities perceived as fair dealing. This decision by the Court sends a strong signal that fair dealing for the purposes research, private study, and now education must receive a large and liberal interpretation and must reflect the rights of users to access works, without payment of fees or need for a licence, to achieve these purposes.

Overall, the five decisions are a strong indication that the Supreme Court of Canada remains committed to the approach to copyright law which it laid down in Théberge and CCH Canadian. Their approach is pragmatic and straightforward. It rejects interpretations of the legislation that allow rights holders to layer economic rights in order to maximize revenues for discrete uses of works. It also makes it clear that fair dealing is a significant users’ right that should be given a generous construction consistent with the public interest it serves. The Court’s approach focuses on balance, and ultimately upon common sense.

On July 12th the Supreme Court of Canada handed down five decisions on copyright law. Collectively these five judgments send a strong message as to the interpretation of the rights of both owners and users of copyright protected works.

In terms of owners’ rights, two of the decisions deal with the scope of the economic right to communicate a work to the public by telecommunication. A third decision addresses the scope of the neighboring right of performers and makers of sound recordings to be remunerated for performances of these works in public or for their communication to the public by telecommunication. The core issue in Entertainment Software Association and Entertainment Software Association of Canada v. SOCAN was whether a tariff could be applied to music incorporated into video games downloaded over the internet. Music is frequently a part of video games, and the makers of video games negotiate the rights to include this music in their products. No separate tariff is applied when such games are purchased by consumers from brick and mortar stores. The issue in this case was whether when the games were sold over the internet as downloads, the songs were communicated to the public by telecommunication. This would implicate a separate economic right of the music copyright holders, and would thus eligible for the imposition of a tariff. Similarly, in Re: Sound v. Motion Picture Theatre Associations of Canada the issue was whether a right of remuneration for music that formed part of movie soundtracks, the use of which would already have been negotiated with the rights holders, was triggered by each time the movie was screened, streamed or broadcast In Rogers Communications Inc. et al v. SOCAN, the issue was whether music streamed over the internet to consumers “on demand” was a communication to the public by telecommunication, to which a tariff could be applied.

In reaching its decisions in these three cases the Court demonstrated both a commitment to the “balancing” approach it had initiated with its 2002 decision in Théberge, and a concern that the Copyright Act be interpreted in a technologically neutral manner. The Court found that in the case of music incorporated into video games, the right to incorporate the music into the game had already been negotiated and paid for by the makers of the video games. The only distinction between the context in which the game was sold in stores and where it was sold over the internet was the manner in which the game was delivered to the consumer. According to the majority of the Court, “it makes little sense to distinguish between the two methods of selling the same work.” (at para 1). To decide otherwise, according to the majority, would “violate[] the principle of technological neutrality, which requires that the Act apply equally notwithstanding the technological diversity of different forms of media.”(at para 2). In the context of online sales of the games, the internet functioned simply as a means of delivering the work to the customer who paid for the work. The majority rejected an approach that would allow for two fees – one for reproduction and one for communication – to be charged simply because of the mode of delivery chosen for the work. The decision has significant ramifications for any work that is made available online for legal downloading, whether it is a movie, game, musical work or electronic text.

In Rogers, the court distinguished between using the internet to download music files from the internet (which would be analogous to the purchase of a video game over the internet, and thus not subject to a separate royalty for communication to the public) and the streaming of music to customers over the internet. In the latter case, musical works were being communicated over the Internet, and these communications were to “the public” notwithstanding the fact that “pull” technology was used such that the works communicated were dependent upon the choices of individual consumers. In reaching the decision the Court also emphasized the principle of “balance” noting that such a balance “is not appropriately struck where the existence of copyright protection depends merely on the business model that the alleged infringer chooses to adopt rather than the underlying communication activity. Whether a business chooses to convey copyright protected content in a traditional, “broadcasting” type fashion, or opts for newer approaches based on consumer choice and convenience, the end result is the same.” (at para 40). Thus in the case of consumers acquiring copies of musical or other works, the internet is used as a delivery mechanism and the work is not “communicated” in a broadcasting sense. By contrast, where the work is streamed, the act is one of communication in a manner that is equivalent to broadcasting.

The Court’s decision in Re: Sound is along the same lines. The Copyright Act provides that performers and makers of sound recordings have a right of remuneration with respect to the performance in public or the communication to the public by telecommunication of their performances or sound recordings. The Act contains an exception; the definition of a “sound recording” excludes “any soundtrack of a cinematographic work where it accompanies the cinematographic work”. On the face of it, this appears quite straightforward. The producers of a movie that is to include a musical work must clear the rights to use the work in the movie; the licensing fee would no doubt take into account the fact that the movie is intended to be shown in cinemas and made available for broadcast or other forms of communication to the public by telecommunication. Therefore, it is unnecessary to provide for additional remuneration for rights holders in these circumstances. This is, indeed, the interpretation adopted by the Supreme Court of Canada.

These decisions on the rights of copyright owners seem eminently sensible. They respect the right of the copyright owner to be remunerated for a commercial use of their work; at the same time, they resist what seems to have emerged as an industry practice to layer rights and royalties on single economic acts. The result is clear, straightforward, practical, and ultimately balanced.

The other two decisions of the Supreme Court of Canada dealt with the ‘users’ right’ of fair dealing. Prior to the decision in CCH Canadian, fair dealing had been treated in Canada as a rather limited exception to the rights of copyright holders. In CCH Canadian, the Supreme Court of Canada established it as a users’ right, and emphasized its role in maintaining the balance between public and private interests under the Copyright Act. In SOCAN v. Bell Canada, the Court was asked to consider the scope of fair dealing in relation to the practice of online music sites of providing previews consisting of short excerpts of musical works to customers searching for music to download from their sites. The collective societies sought a tariff that could be applied to such previews, arguing that they constituted a communication to the public by telecommunication of a substantial part of each work, thus engaging the economic rights of the copyright owner. The music providers argued that previews were consulted by customers as a form of research into the music they wished to purchase; as a result, they were fair dealing for the purposes of research under the Copyright Act. The unanimous Court ruled that these previews were fair dealing. They reiterated the view that fair dealing rights must not be interpreted restrictively, and maintained that “research” must be given a large and liberal interpretation. The Court rejected the idea that “research” could only refer to activities that led to the creation of new works or new knowledge. They maintained that “[t]o do so would ignore the fact that the dissemination of works is also one of the Act’s purposes, which means that dissemination too, with or without creativity, is in the public interest.” (at para 21). The Court found that there was a low threshold for qualifying activities as ‘research’ and that this threshold was met in this case. On the issue of whether the dealing was ‘fair’, it had been argued that the music sites made previews available to customers for essentially commercial purposes, mitigating against a finding that the dealing was fair. However, the Court was of the view that it was the purpose of users that should be considered; in this case, they used the previews “to help them research and identify musical works for online purchase.” (at para 34). The Court examined the nature of the dealing, noting that the excerpts were of 30 to 90 second portions of the work and were of a quality inferior to the musical work available for sale. The Court also rejected an approach to evaluating the volume of dealing with the work on an aggregate basis (i.e., not in relation to the portion of each work accessed, but rather the aggregate number of excerpts accessed by consumers). They noted that such an approach might undermine the goal of technological neutrality, since it would mean that “most of what online service providers do with musical works would be treated as copyright infringement.” (at para 43) The court noted as well that the previewing of musical works did not have a negative effect on the economic rights of the owner of copyright; rather, the goal of providing previews was to facilitate sales of the works, for which the copyright owners would be compensated.

The decision in Province of Alberta v. Access Copyright is likely to be the most controversial of the five decisions. This case addressed a dispute over what types of in-school copying activities could be captured by the tariff for reprography. As photocopying that was fair dealing would be excluded from the tariff, the dispute focussed on whether copies made of excerpts from text books for distribution to students for class instruction amounted to fair dealing. According to a 5-4 majority of the Court, it did. The majority declined to separate the teachers’ purpose (instruction) from that of the students (private study). Instead, they characterized the role of the teachers as to support and facilitate the research and private study of their students. The majority wrote: “It seems to me to be axiomatic that most students lack the expertise to find or request the materials required for their own research and private study, and rely on the guidance of their teachers. They study what they are told to study, and the teacher’s purpose in providing copies is to enable the students to have the material they need for the purpose of studying.” (at para 23). The majority described this as a “symbiotic purpose” between students and teachers. They characterized the provision of photocopied materials to students by teachers as “an essential element in the research and private study undertaken by those students.” (at para 25) Further, the majority rejected an interpretation of “private study” that focussed on the term “private” – in their view, this term “should not be understood as requiring users to view copyrighted works in splendid isolation.” (at para 27)

Having found that the copying of excerpts was for “research or private study” the court next considered whether this dealing was “fair”. They found that it was. As in SOCAN v. Bell, they rejected an approach that considered the volume of dealing on an aggregate basis; instead each excerpt had to be considered in relation to the work from which it was taken. The majority found no reasonable alternative to the dealing; purchasing the books for each student was not a reasonable alternative given that only short excerpts were required. The Court also found the evidence of the economic impact of the copying on textbook publishers to be unconvincing. They noted that there was no causal link between a decline in textbook sales and the copying of short excerpts, and that other factors could more easily explain the decline in sales. Further, they found that it was not reasonable to assume that if the copying did not take place, that the books from which the excerpts were taken would be purchased for all students. The court noted that “it is more likely that students would simply go without the supplementary information, or be forced to consult the single copy already owned by the school.” (para 36).

This decision is of great significance in the educational sector because of its broad definition of “research and private study” and its interpretation of the teachers’ role in their students’ activities. It is also of great significance because it will guide the interpretation of “education” as a new basis for fair dealing introduced by the recently passed Bill C-11. The educational sector in Canada has long been squeezed for royalties by Access Copyright. Resistance to Access Copyright’s licences has been growing, in part because of the under-inclusiveness of such licences when it comes to activities perceived as fair dealing. This decision by the Court sends a strong signal that fair dealing for the purposes research, private study, and now education must receive a large and liberal interpretation and must reflect the rights of users to access works, without payment of fees or need for a licence, to achieve these purposes.

Overall, the five decisions are a strong indication that the Supreme Court of Canada remains committed to the approach to copyright law which it laid down in Théberge and CCH Canadian. Their approach is pragmatic and straightforward. It rejects interpretations of the legislation that allow rights holders to layer economic rights in order to maximize revenues for discrete uses of works. It also makes it clear that fair dealing is a significant users’ right that should be given a generous construction consistent with the public interest it serves. The Court’s approach focuses on balance, and ultimately upon common sense.

Wednesday, 06 June 2012 09:39

Location-Based Services and Privacy

“Location-Based Services and Privacy”, (T. Scassa & Anca Sattler) (2011) 9:2 Canadian Journal of Law and Technology 99-134

The last decade has seen a rapid growth in the number and variety of location-based services that are available to consumers. While some of the older location-based services are tools such as GPS and other navigation systems, more recent innovations include applications that permit users to call up a variety of different information about their current locations, such as the nearest Italian restaurant, or the best deals at a favourite store. Location-based services (LBS) also allow individuals to share their location with friends in a wide range of social networking contexts. Location-based services are already shifting from pull to push applications. Information can now be pushed automatically to users based on their location. The options for such services are virtually limitless, and include mobile-marketing, public transportation applications, information about local points of interest, health care applications connected to remote treatment systems, or tools to find the closest election-day polling booth.

There is no doubt that many location-based services offer real benefits to users. Yet location-based services raise inevitable user privacy concerns. These concerns operate on multiple levels and involve many players. In some applications, privacy issues will arise between individual users, where, for example, applications permit the tracking of movements of family members, co-workers or “friends”. Location-based services may also result in the collection of a new layer of personal information about consumers by private sector companies. Information about individuals and their movements has meaningful commercial value, and the potential for the collection, use and disclosure of this information is significant. Location-based services also raise the spectre of state surveillance of individual activity – either concurrent with an individual’s movements (tracking), or retrospectively, through searching records of individual patterns of movement. These are just some of the contexts in which privacy issues are raised.

In this paper we describe location-based services, their evolution and their future directions. We then outline privacy issues raised by such services. We consider how current Canadian data protection laws apply to location-based services, and indicate where such laws fall short of addressing the full range of issues raised by location-based services. We also explore some technological methods to address the privacy challenges raised by location-based services. The paper concludes with a series of recommendations.

Published in Refereed Articles

“New First Principles? Assessing the Internet’s Challenges to Jurisdiction”, (T. Scassa & R. Currie) (2011) 42:4 Georgetown Journal of International Law 1017-1082

The globalized and decentralized Internet has become the new locus for a wide range of human activity, including commerce, crime, communications and cultural production. Activities which were once at the core of domestic jurisdiction have moved onto the Internet, and in doing so, have presented numerous challenges to the ability of states to exercise jurisdiction. In writing about these challenges, some scholars have characterized the Internet as a separate “space” and many refer to state jurisdiction over Internet activities as “extraterritorial.” This article examines these challenges in the context of the overall international law of jurisdiction, rather than focusing on any one substantive area. This article argues that while the Internet may push at the boundaries of traditional principles of jurisdiction in public international law, it has not supplanted them. The article explores the principles of jurisdiction, including the evolving concept of “qualified territoriality,” and demonstrates how these principles continue to apply in the Internet context. The article examines how states exercise their authority with respect to Internet activities by addressing governance issues, by engaging in normative ordering for the Internet, and by extending the reach of their domestic laws to capture Internet-based activities. Lastly, the article concludes by offering a set of “first principles,” in the form of policy precepts, to guide the evolution of public international law norms and to address problems particular to the context of the global Internet.

Published in Refereed Articles

“Working at the Intersection of Law and Science: Reflections on a Fruitful Collaboration” (with J. Chandler, Y. Bédard, and M. Gervais), in Nicholas Chrisman & Monica Wachowicz, eds., Spatially Enabling Government, Industry and Citizens: Research and Development Perspectives, 2012.

Abstract. It is relatively rare for largely scientific collaborations to involve researchers from law, and when this is done, their contributions are often peripheral to the goals of the main project which are to advance scientific or technological knowledge and to develop applied outcomes. GEOIDE Phase IV broke with this tradition by funding a science-led collaborative research project that put legal and ethical issues squarely at the forefront of the research agenda. In our project, the researchers sought to examine what legal considerations were relevant to the evolution of GIS-related practices, how technological innovations and standards should adapt to normative frameworks, and where law reform might be needed to advance the goals of GIS in a rapidly changing information environment. In this chapter, the authors reflect on the merits and challenges of such an approach, drawing from their own experience as legal researchers and as scientists within a predominantly science and technology-oriented research network.

 

Available from the author.

Published in Refereed Book Chapters

The recent Alberta Court of Appeal decision in United Food and Commercial Workers, Local 401 v. Alberta (Attorney General) raises interesting issues regarding the relationship of data protection legislation to the constitutionally guaranteed freedom of expression.

The dispute arose after a union representing striking casino workers set up a picket line at the mall entrance to the casino. As part of the picketing activity, the Union videotaped the picket line and also took still photographs of persons crossing the line to enter the casino. Signs posted nearby indicated that photographs and videos might be featured on strike-related website. Different things were done with the images; some were posted online on the union’s website, and a still photo of the Casino Vice-President was used in unflattering ways in the Union newsletter and on leaflets. Following a complaint by some of the filmed individuals, an adjudicator under Alberta’s Personal Information Protection Act (PIPA) found that the photos and videos constituted personal information and that it had been collected, used and disclosed without notice or consent, as required by the Act. She also found that the exception to the application of PIPA for personal information that is collected, used or disclosed for “journalistic purposes and no other purpose” did not apply because the Union had multiple purposes for its actions, most of which were not journalistic. She found that the Union could argue that the information was collected, used or disclosed for the purposes of a possible investigation or legal proceeding, as disputes often broke out on picket lines. However, she ruled that the relevant exception would only be available if notice had been given of this purpose for collection. According to the adjudicator, the scope of this exception, if it had been available, would not have extended to the publication of the materials on the website, or the use of the still photos in the newsletter and elsewhere.

The Union sought judicial review of the decision, arguing in particular that their Charter right to freedom of expression had been infringed. Justice Goss of the Alberta Court of Queen’s Bench agreed, and she ordered that the regulation defining “publicly available information” be struck down for being under inclusive, and that the words “and for no other purpose” found in the exception to the Act for journalistic purposes should also be struck down. She also ordered a temporary suspension of invalidity to permit the Alberta legislature to address the defects in the legislation.

The Attorney-General of Alberta appealed this decision to the Alberta Court of Appeal. Although the Court of Appeal agreed with Justice Goss that PIPA posed certain constitutional issues, it disagreed with her as to the source of these issues and the appropriate remedies. It rejected the conclusion that the regulations defining “publicly available information” were relevant, observing correctly that “[u]nder the Act, “personal” information is not the same as “private” information” (at para 10). It spent more time on the s. 4(3)(c) exception to the application of the Act where information is collected, used or disclosed “for journalistic purposes and for no other purpose.” The Union had argued that posting the information on its website or in its pamphlets or newsletters served journalistic purposes, and that the consent of the photographed individuals should not have been required.

The Court of Appeal noted that it was possible to give this provision effect in two ways. The first would be to find that any information that was collected for journalistic purposes as well as other purposes was entirely tainted by those other purposes, and thus could not qualify for the exception. The second would be to find that the information could be collected, used or disclosed without consent for journalistic purposes, but consent would have to be obtained for any other purposes. The Court preferred the latter interpretation, noting that organizations may have many different objectives and purposes. It wrote: “even though the union’s purpose is not primarily journalistic, to the extent that it does engage in journalistic activities it is entitled to rely on the exemption in the Act for that purpose.” (at para 52) Because this approach was adopted, the Court found it unnecessary to rule (as had Justice Goss) that the terms “and for no other purpose” in s. 4(3)(c) were unconstitutional.

The Court next considered the scope of the exception for journalistic purposes in order to determine whether the Union’s activities were captured by it. It opted for a relatively narrow interpretation. It found that the Union’s activities in filming the picket line were not primarily journalistic, but rather focused on “labour relations, collective bargaining, and the economic dynamics of a strike.” (at para 57). It noted: “Just because the union might have to communicate with its members and the public about the strike in order to accomplish its labour relations objectives does not turn the whole exercise into journalism.”(at para 57). The Court was of the view that it was not appropriate to cram the union’s activities into “journalism” in order to conduct a constitutional assessment. Rather, the issue should be whether PIPA, by creating barriers to the Union’s expression in the context of a strike, cast an appropriate balance between the goals of protecting personal information and the freedom of expression.

The jurisprudence is clear that picketing is an expressive activity that is also linked to the freedom of association. The Court of Appeal acknowledged that the decision of the adjudicator in this case did not impact on the right to picket. However, it did place limits on what could be done with photos and recordings made of the picket line activities. According to the Court, recording and distributing images and videos is an activity directly related to the purposes of picketing, which has both an informational and a dissuasive component. Because recordings of people crossing the picket line “spreads news of the picket line to a wider audience . . . [and] tends to increase the pressure on those who might be tempted to cross the picket line” (at para 64), it constitutes expressive activity. Although there is a coercive element to this type of expression, the Court observed that unpleasant speech is protected by the constitution. It stated: “so long as there is no promotion of violence or other illegal activity, a reasonable amount of psychological pressure may be brought to bear on all those involved.” (at para 66)

Because the recording and dissemination of images of people crossing the picket line is expressive conduct, the Court of Appeal concluded that the adjudicator’s decision that the images could not be collected, used or disclosed without consent, violated the Union’s freedom of expression rights. The Court accepted that PIPA served a pressing and substantial objective (protecting against the misuse of personal information), and that placing limits on the collection, use and disclosure of personal information was rationally connected to that objective. However, it found that there was no proportionality in the legislation because it was not drafted “in a manner that is adequately sensitive to Charter rights.” (at para 73). The Court’s comments on the elements of overbreadth of PIPA are interesting.

In the first place, the Court suggests that PIPA is overbroad for having “no functional definition” of the term “personal information”. Yet the core of the definition (“information about an identifiable individual”) is essentially shared by private and public data protection statutes across Canada. According to the Court, it is necessary for the Commissioner to narrow this definition in order to make it compliant with Charter values. However, the structure of the legislation is such that, although the definition is broad, the Act contains many exceptions to its application or to the requirements of consent for collection, use or disclosure of personal information in particular contexts or circumstances. It is not at all clear that the definition is the problem. The court may be looking for a definition that would exclude information about people in public places, yet such an exception to the application of the law (as inadvisable as it might be) could be created without changing the definition. It should be noted that shrinking the scope of the definition might also mean that the legislation would no longer qualify as “substantially similar” to PIPEDA.

The objection to the definition of personal information is thus closely linked to the Court’s second objection, which is that PIPA does not contain a general exception for information “that is personal, but not at all private”. Without citing any examples, the Court claims that “the comparative statutes in some provinces exempt activity that occurs in some public places.” (at para 73). It is not clear to what the court is referring, as the only other provinces with private sector data protection statutes are B.C. and Quebec, and neither statute has the kind of exemption described. The court is most likely referring to statutes in some provinces which create torts of invasion of privacy, and which set certain contextual boundaries for the torts. The situations are not at all equivalent. It is entirely appropriate that an individual’s ability to allege an invasion of their privacy be considered in light of circumstances that include whether they were engaged in activity in a public place. However, the data protection context is different. Data protection laws protect individuals against the collection, use and disclosure of their personal information by private sector actors. There is no obvious reason why an exception to the law should be carved out to permit companies to cull personal information about individuals from multiple sources regarding their movements in public spaces. It is important to note that video surveillance cameras and cell phone location information could both fall within this category of information.

The Court also objects to the “artificially narrow” definition of “publicly available information”. This objection is also problematic. The publicly available information exception is narrowly crafted, and is limited to things such as public telephone directory listings, public government registries, court and tribunal records, and the like. The exception is only available where the information is used for the purposes for which it was made publicly available, and where the collection, use or disclosure being made is for purposes which a reasonable person would consider appropriate in the circumstances. In all cases, the categories of publicly available information are ones where it could be said that the individual has either consented to the information becoming public (for example, directory listings only constitute publicly available information where the individual has been given an option to delist their number), or where the government has mandated by law that such information is to be public (in the case of registries, or court decisions). Information published in a newspaper, magazine or other publication is only publicly available information if “it is reasonable to assume that the individual that the information is about provided that information” (PIPA Regulation, s. 7(e)(ii).) Here again, one finds the notion of consent to a specific use of the information. The exceptions are crafted narrowly because to do otherwise would substantially disrupt the balance in the Act, making all manner of personal information open to collection, use or disclosure without consent. Expanding the definition of publicly available information to include activities in public lacks both the consent element and the specific purpose as a limiting condition.

The Court also objects to the fact that there is “no special exemption for information collected and used for free expression”. In an article critical of the wording of the journalistic purposes exception, I consider a number of problems with the journalistic purposes exception. I have argued that indeed the formulation in Quebec’s private sector data protection legislation is broader than that used in PIPA or PIPEDA, as it refers to journalistic information that is communicated for “the legitimate information of the public”, rather than for the more obscure “journalistic purposes”. This gives somewhat more scope to the exception. However, I note that the effect of the Quebec exception is to permit the Commissioner to consider whether a communication was for “the legitimate information of the public”. In other words, it does not function as an outright exception to the application of the Act (as does the journalistic purposes exception). Rather, it allows the Commissioner to consider the scope and manner of the communication in order to determine whether the balance between freedom of expression and privacy has been appropriately struck. Given the significant developments in the new media, it may well be time to revisit the journalistic purposes exception in data protection laws; this must be done, however, in a thoughtful and considered manner.

Finally, the Court objects to the fact that “there is no exemption allowing organizations to reasonably use personal information that is reasonably required in the legitimate operation of their business.” (at para 73). This is puzzling since this seems to be a central purpose of data protection legislation. The statute as a whole is a scheme designed to permit just that – while at the same time giving individuals some right to control how their personal information is collected, used and disclosed.

Ultimately the Court wisely chose to simply quash the decision of the adjudicator, rather than to declare any portion of the statute unconstitutional. According to the Court, it is up to the legislature “to decide what amendments are required to the Act in order to bring it in line with the Charter.” (at para 81). Any such reform initiative by the legislature should be one that gives a much more careful consideration to the structure of the Act as a whole, and the complex web of interests that are already finely balanced.

 

Published in Privacy

Below is the statement I made to the House of Commons Standing Committee on Access to Information, Privacy and Ethics on May 31, 2012. The Standing Committee had convened hearings on the following motion:

Be it Resolved: That the Committee study the efforts and the measures taken by Google, Facebook and other social media to protect the personal information of Canadians, and that the Committee report its findings back to the House.

I would like to begin by saying that I think it is very important that more attention be given to data protection and privacy in relation to the activities of social media companies. I do find it somewhat ironic, however, that the Committee’s mandate has been framed in terms of studying the efforts and measures taken by social media companies to protect the personal information of Canadians. It is a bit like studying the efforts made by foxes to protect the lives of the chickens.

I note that to the extent that Google, Facebook and other social media companies attempt to protect the personal information of Canadians, these efforts are shaped by data protection law. The adequacy of our data protection legislation must therefore be a focus of attention. The amendments from the first five year review of 2006 have yet to make it through Parliament; the second five year review is already late in getting underway. These should be matters for concern, particularly since the data protection environment has changed substantially since the law was first enacted. The current law is particularly weak with respect to enforcement. The Commissioner has no order making powers and lacks the ability to impose fines or other penalties in the case of particularly egregious conduct.

The focus on social media and privacy has two broad aspects. The first relates to how individuals use these tools to communicate amongst themselves. In this regard we hear concerns about employers accessing Facebook pages, people posting the personal information of other people online, criminals exploiting Facebook information, and so on. These are concerns about information that individuals choose to share, the consequences of that sharing, and the norms that should govern this new mode of interpersonal exchange. The second aspect, and the one on which I will focus my attention is on the role of these companies in harvesting – or in facilitating the harvesting – of massive amounts of information about us in order to track our online activity, consumption habits, and even patterns of movement. In this respect, attention given to large corporations such as Facebook and Google is important, but there are also many other players in the digital environment who are engaging in these practices.

The business models of social media companies are generally highly dependent upon the personal data of their users. In fact, social networking, search engines, email and many other services are offered to us for free. By hosting our content and tracking our activities, these services are able to extract a significant volume of personal data. The nature and quality of this data is enhanced by new innovations. For example, information about the location and movements of individuals is highly coveted. More and more individuals carry with them location enabled smart phones and they use these devices for social networking and other online activities. Even computer browsers are now location-enabled, and thus information about our location is routinely gathered in the course of ordinary internet activities.

The point is that more and more data of increasingly varied kinds are being sought, collected, used and disclosed. This data is compiled, matched and mined in order to profile consumers for various purposes including targeted behavioural marketing. In some cases, this data may be shared with third party advertisers, with application developers or with related companies. Even where the data is de-identified, its fine-textured nature may still leave individuals identifiable, as companies such as AOL and Netflix have learned the hard way. Individuals may also still be identifiable from detailed profile information, and the substantial volumes of information gathered about us make us highly vulnerable to data security breaches of all kind.

It has become very difficult to protect our personal data, particularly in contexts where privacy preferences are set once (and often by default) and the service is one which we use daily or even multiple times each day. It is often difficult to determine what information is being collected, how it is being shared and with whom. Privacy policies are often too long, unclear, and remote for anyone to actually read and understand. We now enter into a myriad of transactions each day and there simply isn’t time or energy to properly “manage” our data. It is a bit like walking through a swamp and being surrounded by a cloud of mosquitoes. To avoid being bitten we can swat away; we can even use insect repellents or other devices, but in the end we are inevitably going to be bitten, often multiple times.

It is also becoming increasingly difficult to avoid entering this swamp. People use social media to keep family and friends close, regardless of how far apart they live, or because the social network communities have become a part of how their own peer groups communicate and interact. Increasingly businesses, schools, and even governments are developing presences in social media, which give even more impetus to individuals to participate in these environments. Traditional information content providers are also moving to the Internet and to Facebook and Twitter, and are encouraging their readers/viewers/listeners to access their news and other information online and in interactive formats. These tools are rapidly replacing traditional modes of communication.

To date, our main protection from the exploitation of our personal information in these contexts has been data protection law. Data protection laws are premised on the need to balance the privacy interests of consumers with the needs of businesses to collect and use personal data. But in the time since PIPEDA was enacted, this need has become a voracious hunger for more and more data, retained for longer and longer periods of time. The need for data has shifted from information required to complete transactions or to maintain client relationships to a demand for data as a resource to be exploited. This shift risks gutting the consent model on which the legislation is based. This new paradigm deserves special attention and may require different legal norms and approaches.

Under the traditional data protection model, the goal was to enable consumers to make informed choices about their personal data. In the big data context, informed choices are virtually impossible to make. Beyond this, there is an element of servitude that is deeply disturbing. Nancy Obermeyer uses the term “volunteered geoslavery” to describe a context where location-enabled devices report on our movements to any number of companies without us necessarily being aware of this constant stream of data. She makes the point that equipping individuals with sensors that report on their activities leaves them vulnerable to dominance and exploitation; yet this is a growing reality in our everyday lives. Going beyond the simple collection of data, social networking services encourage users to make these sites the hub of their daily activities and communications.

Our personal data is a resource that businesses large and small regularly exploit. The data is used to profile us so as to define our consumption habits, to determine our suitability for insurance or other services, or to apply price discrimination in the delivery of wares or services. We become data “subjects” in the fullest sense of the word. There are few transactions or activities that do not leave a data trail.

As noted earlier, many so-called “free” services such as social networking sites, document sharing sites, cool applications, and even internet searching, are actually premised upon the ability to extract user data. In the 2011 decision of the Quebec Superior Court in St. Arnaud c. Facebook a judge refused to certify a class action law suit against Facebook. To do so would have required classifying the terms of use for the site as a consumer contract so that Quebec law could override the clause that provided that all disputes would be settled under the laws of California and adjudicated by California courts. The Quebec Court found that there was no consumer contract because the Facebook service is entirely free, whereas a consumer contract “is premised on payment and consideration.” The judge found that there was no obligation placed on users that could be regarded as a form of consideration.

This case demonstrates how the provision of personal data is overlooked as an element of the contract between the company and the individual. It is treated as a matter governed by the tangential privacy policies. This lack of transparency regarding the quid pro quo makes it the consumer’s sole responsibility to manage their personal information. Concerns that excessive amounts of personal information are being collected can then be met by assertions that people just don’t care about privacy. To regard the sharing of personal data as part of a consumer contract for services, by contrast, places both competition law and consumer protection concerns much more squarely in the forefront. In my view, it is time to explicitly address these concerns.

Another social harm potentially posed by big data is of course, discrimination. Oscar Gandy has written about this in his most recent book. We understand how racial profiling leads to injustice in the application of criminal laws. Profiling, whether based on race, sex, sexual orientation, religion, ethnicity, socio-economic status or other grounds, is a growing concern in how we are offered goods or services. Through big data, corporations develop profiles of our tastes and consumption habits; they channel these back to us in targeted advertising, recommendations and special promotions. When we search for goods or services, we are presented first with those things which we are believed to want. We are told that profiling is good because it means we don’t have to be inundated with marketing material for products or services that are of little interest. Yet there is also a flip side to profiling. It can be used to characterize individuals as unworthy of special discounts or promotional prices; unsuitable for credit or insurance; uninteresting as a market for particular kinds of products and services. Profiling can and will exclude some and privilege others.

I have argued that big data alters the data protection paradigm, and that social networking services, along with many other “free” internet services are major players in this regard. To conclude my remarks, I would like to focus on the following key points.

1) The collection, use and disclosure of personal information is no longer simply an issue of privacy, but raises issues of consumer protection, competition law, and human rights;

2) The nature and volume of personal information collected from social media sites and other “free” internet services goes well beyond transaction information and relates to the activities, relationships, preferences, interests and location of individuals;

3) Data protection law reform is overdue, and may now require a reconsideration or modification of the consent-based approach, particularly in contexts where personal data is treated as a resource and personal data collection extends to movements, activities and interests;

4) Changes to PIPEDA should include greater powers of enforcement for data protection norms, which might include order-making powers, and the power to levy fines or impose penalties in the case of egregious or repeated transgressions.

Published in Privacy
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